November 1, 2005

The Supreme Court heard oral argument today in Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal, the hallucinogenic tea case. A religious group wants to use a drug -- hoasca -- and argues that the Religious Freedom Restoration Act entitles it to an exemption from the Controlled Sustances Act. Under RFRA, the federal government must have a compelling state interest to impose a substantial burden on the free exercise of religion. The government claims an interest in preventing the drug from being diverted into other uses:

"Your approach is totally categorical,'' Roberts told government lawyer Edwin Kneedler during a one-hour argument session in Washington. If a religious group used only one drop of the drug a year, : "your position would still be the same,'' Roberts said....

Justice Antonin Scalia, who wrote the 1990 decision, pointed to an exception Congress made for peyote in American Indian religious ceremonies.

"It's a demonstration you can make exceptions without the sky falling,'' Scalia said.

Justice John Paul Stevens followed up by asking whether the use of peyote indicated that "maybe it's not all that compelling.''

Of the nine justices, Anthony Kennedy offered the strongest support for the government's position.

"It seems to me at the very least there should be a presumption that there is a compelling interest,'' Kennedy told Nancy Hollander, the church's lawyer....

Several justices, including Scalia and Roberts, questioned Hollander's contention that hoasca is exempted under the 1971 United Nations Convention on Psychotropic Substances, which aims to bar trade in illicit drugs. The U.S. is among more than 160 signatories to that treaty.

Both Scalia and Roberts, however, said Congress has the authority to override a treaty through domestic law.

"Isn't it well established that statutes trump treaties?'' Scalia asked.

Interesting! I suppose people will compare this to last term's medical marijuana case, Raich, in which the Court (including Scalia) was quite deferential to the claim that the government needs to be able to pervasively regulate a drug. But Raich was about the scope of Congress's power as against the power of the states. Today's case is about two different federal statutes, one coming after the other and capable of limiting it. The question isn't how much constitutional power Congress has, but what Congress actually did in its two statutes. If it didn't want to cut special exemptions to religious groups, it shouldn't have passed the Religious Freedom Restoration Act. If it didn't want RFRA to apply to drugs, it could have written an exception into it. But in fact, RFRA was enacted in response to a Supreme Court case that was about the failure to give special treatment to the religious use of a drug, so it's especially apt that it should apply here.

My understanding is that hoasca requires a fairly complex preparation just prior to ingestion, and that this is usually done by the priest (or other moderator of the religious ritual). That argues pretty strongly against the government's concern that the drug will be diverted to other unsavory purposes.

I dunno. That "notwithstanding" language in RFRA is pretty strong. The religious belief in question doesn't have to be mainstream, it just has to be "sincerely held" for it to be grounds for overturning federal facially neutral laws... If they stick close to the text on this one, they will have to overturn it, unless they can find some "compelling interest" of the government in regulating Goofy Early Gray, or whatever it is they drink. In the alternative, the Court could hold sort of broadly that the government has a compelling interest in regulating the flow of drugs generally, and that is the interest that trumps the tea drinkers. This would be strengthened by the fact that Congress spoke specificallyto peyote, which use would be respected by RFRA; it could have spoken to the fortified pekoe in question, but it did not, ergo Congress must have intended that the tea be subject to regulation, etc.

Interesting issue. More subtle than some of your commenters seem to get.

Why doesn't Boerne v. Flores dispose of this just up front? I happen to disagree with the restructuring of the Sherbert standard in Smith, but I don't think that a federal statute can overrule the constitutional interpretation of SCOTUS, which is, in effect, which RFRA is effectively an attempt to do.

Matt: Boerne dealt with the scope of the 14th amendment power, which applies only to regulating the states. As to the actions of the federal government, Congress is entitled to write limitations into its own laws all it wants as long as it doesn't violate some other limitation -- such as the Establishment Clause. Cutter shows that removing burdens on religion doesn't violate the EC.

Awww Dave that's cute. Resorting to pointing out my spelling error is just a wonderful argumentative technique. You're not a lawyer, I hope? Plus, look at the spelling of most of the other people on this board and get off my back. It's especially cute when you resort to this after you've realized that your other argumentative method (the "just give me my way [legalize drugs] and I won't whine about it anymore" method) is even more childish than the spelling error stance! Bravo! Legalize the drugs all you want, but you still won't have access to them as you'll still need a doctor and a pharmacist to write and validate prescriptions for you. Of course maybe those idiotic health professions should be abolished as well. You should just be able to medicate yourself in any way you feel fit! The current system is so damn socialist!

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